2020Criminal Records

Written By ESR News Blog Editor Thomas Ahearn

On April 20, 2020, a proposed class action lawsuit was filed in a Delaware federal court “against Bank of America for violations of Title VII of the Civil Rights Act of 1964 as a result of discriminatory background check policy and practice,” according to a copy of the complaint available on the Bloomberg Law website.

In the complaint for Gilder v. Bank of America filed in the United States District Court for the District of Delaware, Plaintiff Willie Gilder claimed Defendant Bank of America discriminated against him due to his race in violation of Title VII “when it intentionally and wrongfully rescinded his employment offer.”

In September of 2017, Plaintiff Gilder claimed he applied for the position with Defendant Bank of America and received an offer of employment that was “contingent upon satisfactory completion of background checks required by law and Company policy for all Bank of America employees.”

Bank of America then submitted Gilder’s fingerprints – which they had in their system from a previous job application from Gilder – to the Federal Bureau of Investigation (FBI) Criminal Justice Information Services (CJIS) Division, a division of the FBI that provides criminal justice information.

Later in September of 2019, Gilder received a letter from Bank of America stating “he may be denied a position with Bank of America based on information obtained from the FBI and/or possible additional court research.” Attached to the correspondence was Gilder’s criminal history report from the FBI.

The FBI’s criminal history report stated Gilder’s charge for dealing cocaine was “dismissed” and stated “no disposition information is on file for this arrest custody.” Gilder received another letter from Bank of America stating he was being denied employment based upon a conviction for dealing cocaine.

However, the FBI criminal history report supplied to Bank of America stated that the charge was dismissed. Gilder sent Bank of America court documents that showed he was never convicted of dealing cocaine and a court order granting his petition for expungement for his conviction for possession of a controlled substance.

Despite this, Gilder “received another correspondence from Bank of America regarding his appeal, stating they are unable to overturn their decision denying his employment. Again, Bank of America supplied Plaintiff with the erroneous information regarding a conviction for dealing in cocaine,” the complaint claimed.

The U.S. Equal Employment Opportunity Commission (EEOC) “strongly cautions employers against using arrest records in employment decisions under almost all circumstances, because the fact that an applicant has been arrested in the past is insufficient evidence to conclude the applicant actually committed a crime,” it read.

“The EEOC also presumes that exclusions based on criminal convictions have a disparate impact based on race and national origin in violation of Title VII,” according to the complaint. The EEOC enforces Title VII, which prohibits employment discrimination based on race, color, religion, sex, and national origin.

Employment Screening Resources® (ESR) – a global background check firm – reminds readers that allegations made in class action lawsuits are not proof a business or individual violated any law, rule, or regulation since they are in the pleading stage with no factual adjudications yet. Learn more about ESR at www.esrcheck.com.

NOTE: Employment Screening Resources® (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.

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